When the Senate returns from its two-week Thanksgiving break, it will face a vote that will have a profound effect on the military justice system.
The issue at stake is how the armed services handle sexual assault allegations within the ranks. It’s a sensitive topic, to be sure, and one that everyone agrees must be dealt with effectively.
But exactly how to deal with it is what has divided lawmakers on Capitol Hill — including Texas’ two Republican senators.
Freshman Sen. Ted Cruz, a member of the Senate Armed Services Committee, has lent his support to an amendment to the Defense Authorization Bill, authored by fellow committee member, Democratic Sen. Kirsten Gillibrand of New York, that would strip military commanders of the authority to determine how rape and sexual assault cases are handled. Instead, the decision on whether to prosecute would go to a military lawyer at the rank of colonel or higher.
Gillibrand’s amendment drew the support of 53 senators — but Texas Sen. John Cornyn is not among them. Like many others in the Senate, he believes the proposed change would weaken the command structure and remove a commander’s ability to threaten a court-martial or carry out nonjudicial punishment.
Opponents also believe Gillibrand’s proposal would have unintended consequences for the victim, such as reducing the likelihood of reaching a plea-bargain, in order to avoid a potentially difficult jury trial.
Still, the magnitude of the problem demands decisive action by Congress.
In a recent oped co-authored with Gillibrand, Cruz cited Defense Department figures showing that 3,374 cases of unwanted sexual contact were reported in the military last year. Those cases resulted in just 302 trials and 238 convictions. Another 23,000 cases went unreported.
Cruz noted the total number of cases represents a 37 percent increase from the previous year — a disturbing figure.
But perhaps equally disturbing, the report also stated 66 percent of victims said they were not comfortable enough to report their assault, 50 percent believed nothing would be done if they did, and 47 percent cited fear of retaliation, in explaining their silence.
Those statistics paint an alarming picture of a system that simply isn’t working.
As it stands, the defense bill contains 26 changes to the military justice process, including provisions that would remove commanders’ authority to overturn jury convictions, require dishonorable discharge or dismissal for any service member convicted of sexual assault and establish a civilian review for cases that are not prosecuted.
Cornyn supports an amendment co-authored by Sen. Kelly Ayotte, R-N.H., that would preclude the use of the good military character defense, allow assault victims to challenge a discharge or service separation and place the military service academies under the new protections.
But under Ayotte’s amendment, the authority on how to handle a sexual assault case would still rest with the commander.
Understandably, the Pentagon wants the system left as is. But is the status quo the right way to go?
Naturally, there are pluses and minuses to taking commanders out of the reporting loop. For one, removing commanders’ authority in these cases also runs the risk of removing their responsibility in the process — and that benefits no one.
Still, putting complaints in the hands of an unbiased third party is the most objective way to handle a case. During a visit to Fort Hood last summer, Cruz noted that reporting rates for military sexual assaults are higher in Israel and Great Britain, where the process has been removed from the chain of command.
The big question is whether it’s worth disrupting 200 years of U.S. military tradition in seeking a similar result.
Whatever route Congress chooses, it’s apparent that thorough reporting and vigorous prosecution of sexual assaults is essential to addressing the problem.
It’s often said the Army takes care of its own. This is one area where that statement must be put to the test.